BILL NUMBER: AB 884	CHAPTERED  10/10/99

	CHAPTER   626
	FILED WITH SECRETARY OF STATE   OCTOBER 10, 1999
	APPROVED BY GOVERNOR   OCTOBER 5, 1999
	PASSED THE ASSEMBLY   AUGUST 30, 1999
	PASSED THE SENATE   AUGUST 25, 1999
	AMENDED IN SENATE   AUGUST 16, 1999
	AMENDED IN ASSEMBLY   MAY 20, 1999
	AMENDED IN ASSEMBLY   APRIL 26, 1999

INTRODUCED BY   Assembly Member Kuehl

                        FEBRUARY 25, 1999

   An act to add Chapter 4.5 (commencing with Section 1701) to Part 6
of Division 2 of the Labor Code, relating to talent services.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 884, Kuehl.   Advance-fee talent services.
   Existing law requires talent agencies, as defined, to be licensed
by the Labor Commissioner prior to engaging in the occupation of
seeking employment or engagements for an artist or artists.
   This bill would require any contract of an advance-fee talent
service, as defined, with an artist for the provision of services for
an advance fee, as defined, to be a written contract containing
specified provisions, including provisions governing refunds.  The
Labor Commissioner would be authorized to adopt regulations
prescribing additional provisions required in such a contract.  An
advance-fee talent service would be required to file a bond or
deposit of $10,000 with the Labor Commissioner.  The bill would
specify procedures for making claims against such a bond or deposit
held by the Labor Commissioner.
   The bill would also prohibit certain acts by an advance-fee talent
service.  A violation of the bill would be a crime punishable as a
misdemeanor.  In creating a new crime the bill would impose a
state-mandated local program. The bill would authorize an artist
injured by the breach of a contract subject to the bill or a
violation of the bill to bring an action for treble damages. The bill
would authorize an award of attorney's fees to a prevailing
plaintiff, and would authorize an award of punitive damages for
willful violations.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Chapter 4.5 (commencing with Section 1701) is added to
Part 6 of Division 2 of the Labor Code, to read:

      CHAPTER 4.5.  ADVANCE-FEE TALENT SERVICES
      Article 1.  Definitions

   1701.  For purposes of this chapter, the following terms have the
following meanings:
   (a) (1) "Advance fee" means any fee due from or paid by an artist
prior to the artist obtaining actual employment as an artist or prior
to the artist receiving actual earnings as an artist or that exceeds
the actual earnings received by the artist as an artist.
   (2) "Advance fee" does not include reimbursements for
out-of-pocket costs actually incurred by the payee on behalf of the
artist for services rendered or goods provided to the artist by an
independent third party if all of the following conditions are met:
   (A) The payee has no direct or indirect financial interest in the
third party.
   (B) The payee does not accept any referral fee or other
consideration for referring the artist.
   (C) The services rendered or goods provided for the out-of-pocket
costs are not represented to be, and are not, a condition for the
payee to register or list the artist with the payee.
   (D) The payee maintains adequate records to establish that the
amount to be reimbursed was actually advanced or owed to a third
party and that the third party is not a person in which the payee has
a direct or indirect financial interest or from which the payee
receives any consideration for referring the artist.
   (E) The burden of producing evidence to support a defense based
upon an exemption or an exception provided in this paragraph is upon
the person claiming it.
   (b) "Advance-fee talent service" means a person who charges,
attempts to charge, or receives an advance fee from an artist for one
or more of the following:
   (1) Procuring, offering, promising, or attempting to procure
employment or engagements for the artist.
   (2) Managing or directing the development or advancement of the
artist's career as an artist.
   (3) Career counseling, career consulting, vocational guidance,
aptitude testing, evaluation, or planning, in each case relating to
the preparation of the artist for employment as an artist.
   (4) Registering or listing an artist for employment in the
entertainment industry or as a customer of the advance-fee talent
service.
   (5) Creating or providing photographs, filmstrips, videotapes,
audition tapes, demonstration reels, or other reproductions of the
artist, or casting or talent brochures or other promotional materials
for the artist.
   (6) Creating or providing costumes for the artist.
   (7) Providing lessons, coaching, or similar training for the
artist.
   (8) Providing auditions for the artist.
   (9) Any activity of a like nature.
   (c) "Artist" or "artists" means persons who seek to become or are
actors or actresses rendering services on the legitimate stage or in
the production of motion pictures, radio artists, musical artists,
musical organizations, directors of legitimate stage, motion picture
and radio productions, musical directors, writers, cinematographers,
composers, lyricists, arrangers, models, extras, and other artists or
persons rendering professional services in motion picture,
theatrical, radio, television, and other entertainment enterprises.
   (d) "Fee" means any money or other valuable consideration paid or
promised to be paid by or for an artist for services rendered or to
be rendered by any person conducting the business of an advance-fee
talent service.
   (e) "Person" means any individual, company, society, firm,
partnership, association, corporation, limited liability company,
trust, or other organization.
   1701.1.  This chapter does not apply to any person exempt from
regulation under the Employment Agency, Employment Counseling, and
Job Listing Services Act (Title 2.91 (commencing with Section
1812.500) of Part 4 of Division 3 of the Civil Code) pursuant to
paragraph (2) of subdivision (b) of Section 1812.501 or Section
1812.502 of the Civil Code.
   1701.2.  Compliance with this chapter does not satisfy or is not a
substitute for the requirements mandated by any other applicable
law, including the obligation to obtain a license under the Talent
Agencies Act (Chapter 4 (commencing with Section 1700)), prior to
procuring, offering, promising, or attempting to procure employment
or engagements for artists.

      Article 2.  Contract Agreement Provisions and Recordkeeping

   1701.4.  (a) Every contract or agreement between an artist and an
advance-fee talent service for an advance fee shall be in writing.
The contract shall contain all of the following provisions and the
additional provisions, if any, as may be set forth in regulations
adopted by the Labor Commissioner from time to time:
   (1) The name, address, and telephone number of the advance-fee
talent service, the artist to whom the services are to be provided,
and the representative executing the contract on behalf of the
advance-fee talent service.
   (2) A description of the services to be performed, a statement
when those services are to be provided, the duration of the contract,
and refund provisions if the described services are not provided
according to the contract.
   (3) The amount of any fees to be charged to or collected from the
artist receiving the services or any other person and the date or
dates when those fees are required to be paid.
   (4) The following statements, in type no smaller than 10-point
boldface type and in close proximity to the artist's signature, shall
be included in the contract:
      RIGHT TO REFUND

   "If you pay all or any portion of a fee and you fail to receive
the services promised or that you were led to believe would be
performed, then (name of advance-fee talent service) shall, upon your
request, return the amount paid by you within 48 hours of your
request for a refund.  If the refund is not made within 48 hours,
then (name of advance-fee talent service) shall, in addition, pay you
a sum equal to the amount of the refund."


                       YOUR RIGHT TO CANCEL
                   (enter date of transaction)
     You may cancel this contract for advance-fee talent services,
without any penalty or obligation, if notice of cancellation is
given, in writing, within 10 business days from the above date.
     To cancel this contract, mail or deliver a signed and dated
copy of the following cancellation notice or any other written
notice of cancellation, or send a telegram containing a notice of
cancellation to (name of advance-fee talent service) at (address
of its place of business), NOT LATER THAN MIDNIGHT OF (date).
     ONLY A TALENT AGENT LICENSED PURSUANT TO SECTION 1700.5
OF THE LABOR CODE MAY ENGAGE IN THE OCCUPATION OF PROCURING,
OFFERING,
PROMISING, OR ATTEMPTING TO PROCURE EMPLOYMENT OR ENGAGEMENTS FOR AN
ARTIST.
                  CANCELLATION NOTICE
           I hereby cancel this contract.
           Dated:  ______________________
           ______________________________
           Artist Signature.


   (b) All contracts subject to this section shall be dated and shall
be made and numbered consecutively in triplicate, the original and
each copy to be signed by the artist and the person acting for the
advance-fee talent service.  The advance-fee talent service shall
provide an original and one copy of the contract to the artist at the
same time the artist signs the contract and before the artist or any
person acting on his or her behalf becomes obligated to pay or pays
any fee.  The additional copy shall be kept on file at the
advance-fee talent service's place of business.
   (c) The full agreement between the parties shall be contained in a
single document containing the elements set forth in this section.
   (d) Any contract subject to this section that does not comply with
subdivisions (a) to (c), inclusive, of this section shall be
voidable at the election of the artist and, in that case, shall not
be enforceable by the advance-fee talent service.
   (e) Refunds shall be made as follows:
   (1) In the event that an artist does not receive the services
promised or that the artist was led to believe would be performed,
the advance-fee talent service shall, upon demand therefor, repay the
artist the fees collected for those services.  If repayment is not
made within 48 hours after the artist's demand, the advance-fee
talent service shall pay the artist an additional sum equal to the
amount of the fee.
   (2) In the event that an artist cancels the contract, the
advance-fee talent service shall refund in full any advance fees
demanded by the artist in writing within 10 business days after
delivery of the demand to the advance-fee talent service, provided
that the artist furnishes a notice of cancellation to the advance-fee
talent service in the manner specified in paragraph (4) of
subdivision (a).  Unless repayment is made within 10 business days
after the demand, the advance-fee talent service shall pay the artist
an additional sum equal to the amount of the fee.
   1701.5.  (a) Every person engaging in the business of an
advance-fee talent service shall keep and maintain records of the
person's advance-fee talent service business.  The records shall
contain all of the following:
   (1) The name and address of each artist employing that person as
an advance-fee talent service.
   (2) The amount of the advance fees paid by or for the artist
during the term of the contract with the advance-fee talent service.

   (3) A record of all advertisements by the advance-fee talent
service, including the date and the publication in which the
advertisement appeared, which shall be maintained for a period of
three years following publication.
   (4) Records described in subparagraph (D) of paragraph (2) of
subdivision (a) of Section 1701.
   (5) Any other information that the Labor Commissioner requires.
   (b) All books, records, and other papers kept pursuant to this
chapter by an advance-fee talent service shall be open at all
reasonable hours to inspection by the Labor Commissioner and his or
her representatives and to the representative of the Attorney
General, any district attorney, or any city attorney.  Every
advance-fee talent service shall furnish to the Labor Commissioner
and to the representative of the Attorney General, any district
attorney, or any city attorney, upon request, a true copy of those
books, records, and papers, or any portion thereof, and shall make
reports as the Labor Commissioner requires.
   (c) Every advance-fee talent service shall post in a conspicuous
place in the office of the advance-fee talent service a printed copy
of this chapter and of other statutes as may be specified by
regulation of the Labor Commissioner.  Those copies shall also
contain the name and address of the officer charged with the
enforcement of this chapter.  The Labor Commissioner shall furnish to
the advance-fee talent service printed copies of any statute
required to be posted under this section.

      Article 3.  Written Disclosure

   1701.8.  Prior to requesting any advance fee, an advance-fee
talent service shall provide an artist with written disclosure of all
of the following:
   (a) The name, address, and telephone number of the advance-fee
talent service, and evidence of compliance with any applicable
bonding requirements, including the bond number, if any.
   (b) A copy of the advance-fee talent service fee schedule and
payment terms.

      Article 4.  Bond Requirements and Fees

   1701.10.  (a) Prior to engaging in the business or acting in the
capacity of an advance-fee talent service, a person shall file with
the Labor Commissioner a bond in the amount of ten thousand dollars
($10,000) or a deposit in lieu of the bond pursuant to Section
995.710 of the Code of Civil Procedure.  The bond shall be executed
by a corporate surety qualified to do business in this state and
conditioned upon compliance with this chapter.  The total aggregate
liability on the bond shall be limited to ten thousand dollars
($10,000).  The bond may be terminated pursuant to Section 995.440
of, or Article 13 (commencing with Section 996.310) of Chapter 2 of
Title 14 of Part 2 of, the Code of Civil Procedure.
   (b) The bond required by this section shall be in favor of, and
payable to, the people of the State of California and shall be for
the benefit of any person damaged by any fraud, misstatement,
misrepresentation, unlawful act or omission, or failure to provide
the services of the advance-fee talent service while acting within
the scope of that employment or agency.
   (c) The Labor Commissioner shall charge and collect a filing fee
to cover the cost of filing the bond or deposit.
   (d) The Labor Commissioner shall enforce the provisions of this
chapter that govern the filing and maintenance of bonds and deposits.

   (e) (1) Whenever a deposit is made in lieu of the bond otherwise
required by this section, the person asserting the claim against the
deposit shall establish the claim by furnishing evidence to the Labor
Commissioner of a money judgment entered by a court, together with
evidence that the claimant is a person described in subdivision (b).

   (2) When a claimant has established the claim with the Labor
Commissioner, the Labor Commissioner shall review and approve the
claim and enter the date of the approval thereon.  The claim shall be
designated an approved claim.
   (3) When the first claim against a particular deposit has been
approved, it shall not be paid until the expiration of a period of
240 days after the date of its approval by the Labor Commissioner.
Subsequent claims that are approved by the Labor Commissioner within
the same 240-day period shall similarly not be paid until the
expiration of that 240-day period.  Upon the expiration of the
240-day period, the Labor Commissioner shall pay all approved claims
from that 240-day period in full unless the deposit is insufficient,
in which case every approved claim shall be paid a pro rata share of
the deposit.
   (4) Whenever the Labor Commissioner approves the first claim
against a particular deposit after the expiration of a 240-day
period, the date of approval of that claim shall begin a new 240-day
period to which paragraph (3) applies with respect to any amount
remaining in the deposit.
   (5) After a deposit is exhausted, no further claims shall be paid
by the Labor Commissioner.  Claimants who have had claims paid in
full or in part pursuant to paragraph (3) or (4) shall not be
required to return funds received from the deposit for the benefit of
other claimants.
   (6) Whenever a deposit has been made in lieu of a bond, the amount
of the deposit shall not be subject to attachment, garnishment, or
execution with respect to an action or judgment against the assignor
of the deposit, other than as to an amount as no longer needed or
required for the purposes of this chapter and that would otherwise be
returned to the assignor of the deposit by the Labor Commissioner.
   (7) The Labor Commissioner shall return a deposit two years from
the date it receives written notification from the assignor of the
deposit that the assignor has ceased to engage in the business or act
in the capacity of an advance-fee talent service or has filed a bond
pursuant to subdivision (a), provided that there are no outstanding
claims against the deposit.  The written notice shall include all of
the following:
   (A) The name, address, and telephone number of the assignor.
   (B) The name, address, and telephone number of the bank at which
the deposit is located.
   (C) The account number of the deposit.
   (D) A statement that the assignor is ceasing to engage in the
business or act in the capacity of an advance-fee talent service or
has filed a bond with the Labor Commissioner.  The Labor Commissioner
shall forward an acknowledgement of receipt of the written notice to
the assignor at the address indicated therein, specifying the date
of receipt of the written notice and the anticipated date of release
of the deposit, provided there are then no outstanding claims against
the deposit.
   (8) A municipal or superior court may order the return of the
deposit prior to the expiration of two years upon evidence
satisfactory to the court that there are no outstanding claims
against the deposit, or order the Labor Commissioner to retain the
deposit for a specified period beyond the two years to resolve
outstanding claims against the deposit.
   (9) This subdivision applies to all deposits retained by the Labor
Commissioner.  The Labor Commissioner shall notify each assignor of
a deposit it retains and of the applicability of this section.
   (10) Compliance with Sections 1700.15 and 1700.16 of this code or
Section 1812.503, 1812.510, or 1812.515 of the Civil Code shall
satisfy the requirements of this section.

      Article 5.  Prohibited Acts

   1701.12.  An advance-fee talent service, or its agent or employee,
may not do any of the following:
   (a) Make, or cause to be made, any false, misleading, or deceptive
advertisement or representation concerning the services the artist
will receive or the costs the artist will incur.
   (b) Publish or cause to be published any false, fraudulent, or
misleading information, representation, notice, or advertisement.
   (c) Give an artist any false information or make any false promise
or misrepresentation concerning any engagement or employment, or
make any false or misleading verbal or written promise or guarantee
of any job or employment to an artist.
   (d) Make any false promise or representation, by choice of name or
otherwise, that the advance-fee talent service is a talent agency or
will procure or attempt to procure employment or engagements for the
artist as an artist.
   (e) Charge or attempt to charge, directly or indirectly, an artist
for registering or listing the artist for employment in the
entertainment industry or as a customer of the advance-fee talent
service.
   (f) Charge or attempt to charge, directly or indirectly, an artist
for creating or providing photographs, filmstrips, videotapes,
audition tapes, demonstration reels, or other reproductions of the
artist, casting or talent brochures, or other promotional materials
for the artist.
   (g) Charge or attempt to charge, directly or indirectly, an artist
for creating or providing costumes for the artist.
   (h) Charge or attempt to charge, directly or indirectly, an artist
for providing lessons, coaching, or similar training for the artist.

   (i) Charge or attempt to charge, directly or indirectly, an artist
for providing auditions for the artist.
   (j) Refer an artist to any person who charges the artist a fee for
the services described in subdivisions (e) to (i), inclusive, in
which the advance-fee talent service has a direct or indirect
financial interest.
   (k) Accept any compensation for referring an artist to any person
charging the artist a fee for the services described in subdivisions
(e) to (i), inclusive.

      Article 6.  Remedies

   1701.13.  A person who willfully violates any provision of this
chapter is guilty of a misdemeanor.  Each violation is punishable by
imprisonment in the county jail for not more than one year, by a fine
not exceeding ten thousand dollars ($10,000), or by both that fine
and imprisonment.  However, payment of restitution to an artist shall
take precedence over the payment of a fine.
   1701.15.  The Attorney General, any district attorney, or any city
attorney may institute an action for a violation of this chapter,
including, but not limited to, an action to restrain and enjoin a
violation.
   1701.16.  A person who is injured by any violation of this chapter
or by the breach of a contract subject to this chapter may bring an
action for recovery of damages or to restrain and enjoin a violation,
or both.  The amount awarded for damages for a violation of this
chapter may be up to three times the damages actually incurred, but
not less than the amount paid by the artist to the advance-fee talent
service.  When an advance-fee talent service refuses or is unwilling
to pay damages awarded by a judgment that has become final, the
judgment may be satisfied from the bond or deposit maintained by the
Labor Commissioner.  If the plaintiff prevails in an action under
this chapter, the plaintiff shall be awarded reasonable attorney's
fees and costs.  If the court determines, by clear and convincing
evidence, that the breach of contract or violation of this chapter
was willful, the court, in its discretion, may award punitive damages
in addition to any other amounts.
   1701.17.  The provisions of this chapter are not exclusive and do
not relieve any person subject to this chapter from the duty to
comply with all other laws.
   1701.18.  The remedies provided in this chapter are not exclusive
and shall be in addition to any other remedies or procedures provided
in any other law.
   1701.19.  Any waiver by the artist of the provisions of this
chapter is deemed contrary to public policy and void and
unenforceable.  Any attempt by an advance-fee talent service to have
an artist waive his or her rights under this chapter is a violation
of this chapter.
   1701.20.  If any provision of this chapter or the application
thereof to any person or circumstances is held unconstitutional, the
remainder of the chapter and the application of that provision to
other persons and circumstances shall not be affected thereby.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
